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Tuesday, Sept. 6, 2011

Richard Clifton v. Village of Blanchester, Case no. 2010-1196
12th District Court of Appeals (Butler County)

Matthew E. Moore et al. v. City of Middletown et al., Case no. 2010-1363
12th District Court of Appeals (Butler County)

State of Ohio v. Charles Freeman, Case no. 2010-1671
8th District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Philip Lucas Proctor, Case no. 2011-0295
Licking County


Can Owner of Property Outside City Sue for Loss of Value Based on Rezoning of Adjacent Property?

Nonresidents Claim City’s Action Was ‘Partial Taking’ of Their Property

Richard Clifton v. Village of Blanchester, Case no. 2010-1196
12th District Court of Appeals (Butler County)

Matthew E. Moore et al. v. City of Middletown et al., Case no. 2010-1363
12th District Court of Appeals (Butler County)

NOTE:  The two cases captioned above will be argued separately at the Court’s Sept. 6. Oral argument session. They are summarized together here because both raise the same legal issue, and the parties in both cases advance very similar arguments.

ISSUE:  When a city or other political subdivision grants an application for zoning or rezoning of property located within its geographic boundaries, do the owners of adjacent properties that are located outside of the political subdivision have legal standing to pursue a lawsuit against the subdivision based on a claim that the zoning has significantly reduced the value of their property, and therefore constitutes a partial regulatory “taking” of that property for which the owners are entitled to compensation?

BACKGROUND: In Case No. 2010-1196, Clifton v. Blanchester, the Village of Blanchester enacted an ordinance approving the rezoning of a 2.87 acre parcel of land within the village that was currently occupied by a machine shop.  The rezoning was  from “restricted industrial”  to “general industrial” use. Richard Clifton, the owner of a home and 99 acres of farmland immediately adjoining the rezoned property, but outside the Blanchester village limits, filed suit against the village in the Clinton County Court of Common Pleas.

In his complaint, Clifton alleged that the rezoning of the machine shop property constituted an unconstitutional partial “taking” of his property without compensation because the new zoning  classification would allow uses of that land that would make his adjoining property unattractive for future residential development, which Clifton alleged had been his intention at the time he purchased the land.  Asserting that his property had suffered a significant reduction in value because of the rezoning, Clifton asked the trial court to order the village to conduct an “inverse appropriation” proceeding in which the village would be required to compensate Clifton for the loss of value of his property arising from its regulatory action.

After initially granting partial summary judgment in favor of Blanchester, and having the case remanded by the 12th District Court of Appeals for rulings on additional issues, the trial court entered summary judgment in favor of the village dismissing all of Clifton’s claims. The 12th District reviewed and affirmed the trial court’s action, holding that 1) Clifton did not have legal standing to pursue a “takings” claim against Blanchester because he was not a resident of Blanchester and its rezoning of property adjacent to his had not denied him continued use of his land for farming or any other purpose; and 2) even if Clifton had standing to sue, he was not eligible to pursue a “partial takings” claim against the village pursuant to the U.S. Supreme Court’s decision in Penn Central Transportation Co. v. New York because Penn Central involved a regulatory action that directly addressed the plaintiff’s property, while the rezoning ordinance in this case did not directly address Clifton’s property.

In Case No. 2010-1363, Moore v. Middletown, the city of Middletown enacted an ordinance granting a requested rezoning of 157 acres within the Middletown city limits from residential to industrial, clearing the way for construction of a coke (industrial coal) processing facility on that property.

The owners of three parcels of residential property adjacent to the rezoned land but outside the city limits of Middletown, including Matthew and Lori Moore,  filed a lawsuit against the city in the Butler County Court of Common Pleas. In their complaint, the landowners sought a declaratory judgment that because the proximity of a coal-processing facility would significantly reduce the value of their residential properties, the rezoning ordinance was an unconstitutional regulatory taking of their property without due process of law. They asked the court to issue a writ of mandamus compelling Middletown to initiate inverse appropriation proceedings to compensate them for the reduced value of their property resulting from the rezoning.

Middletown moved for summary judgment, asserting that the plaintiffs’ complaint should be dismissed for failure to state a claim for which the court could grant relief because the plaintiffs’ property was outside the city limits, and the city had no eminent domain authority to condemn or appropriate land outside its geographical borders. The trial court agreed, and entered summary judgment in favor of the city.

The landowners appealed.  On review, the 12th District Court of Appeals held that the trial court had erred in even considering the landowners’ takings claims on the merits because the plaintiffs were not residents of Middletown and its rezoning ordinance was not directed to their property, and therefore they lacked legal standing to pursue a lawsuit against the city based on the rezoning. The court of appeals went on to hold that, even if the landowners had standing to sue, the trial court was correct in holding that the remedy they asked for – an order compelling Middletown to appropriate and pay them for their property --  was not within the legal authority of the city.

The plaintiff landowners in both cases sought and were granted Supreme Court review of the 12th District’s rulings.

Attorneys for Clifton and the Moores contend that, although no Ohio court decisions have held that a nonresident has legal standing to challenge the zoning or rezoning of property adjacent to their own by a neighboring political subdivision, a majority of other states and federal courts that have considered the issue have held that a nonresident does have standing to challenge a political subdivision’s zoning action if he can show that he will be substantially, directly and adversely affected by the rezoning.

In each of these cases, they say, the 12th District erred in affirming summary judgments against the plaintiffs  because the plaintiffs had presented pretrial evidence sufficient to create a material question of fact regarding whether the zoning ordinances enacted by Blanchester and Middletown had a significant negative impact on the current and future value of the adjacent property.  Pursuant to the U.S. Supreme Court’s holding in Penn Central, the plaintiffs contend, their cases should be allowed to proceed to trial where a judge or jury could reasonably find that the challenged rezoning ordinances constituted a partial regulatory taking of their property, entitling them to compensation. 

Attorneys for Blanchester and Middletown urge the Court to affirm the 12th District’s rulings  that, because the zoning ordinances at issue did not effect a “taking” of the plaintiff’s property either by appropriating it for a public purpose or by imposing a government regulation that deprived the owners of a current or future use of their property, under Ohio law the plaintiffs do not have legal standing  to challenge those ordinances in court. If the Court finds that the plaintiffs do have standing to bring a “partial takings” claim based on the  U.S.  Supreme Court’s holding in Penn Central, Blanchester and Middletown argue that such a claim must fail because the plaintiff in Penn Central was the owner of property located in New York City that was directly impacted by a New York City ordinance that prohibited the owner from making a desired use of its property.

With regard to the public policy implicated in these cases, the defendants argue that if the Court were to adopt the position of the plaintiffs, any political subdivision granting  a future zoning or rezoning application by the owner of property located within its borders would face the prospect of multiple lawsuits by owners of adjacent properties, including property outside the zoning authority’s borders, alleging loss of property value because of the zoning decision and demanding compensation for those alleged losses.

Contacts
Jay C. Bennett, 513.523.4104, for Matthew and Lori Moore.

Robert J. Gehring, 513.784.1525, for the City of Middletown.

William G. Fowler, 513.932.7444, for Richard Clifton.

Lawrence E. Barbiere, 513.583.4200, for the Village of Blanchester.

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To What Degree Must Indictment Differentiate Between Multiple, Identical Charges Against Defendant?

State of Ohio v. Charles Freeman, Case no. 2010-1671
8th District Court of Appeals (Cuyahoga County)

ISSUE: When an adult defendant is charged with multiple alleged acts of child sexual abuse over an extended period of time, and the state’s indictment charges numerous identical offenses without any specific facts or circumstances that identify individual incidents or types of sexual conduct corresponding to those counts, does the indictment violate: 1) the defendant’s fair trial right to have notice of and the ability to prepare a defense against each criminal count with which he is charged; or 2) the defendant’s double jeopardy right not to be tried twice for the same conduct.

BACKGROUND: In 2008, Charles Freeman was indicted by a Cuyahoga County grand jury on 19 counts of rape of a child under the age of 13 and nine counts of disseminating obscene matter to juveniles. The charges were based on allegations by the nine and ten-year-old daughters of Freeman’s then girlfriend that over a period of approximately six months Freeman had engaged in sexual conduct with them on multiple occasions and had them watch while he and their mother engaged in sex acts.

The first three of the 19 rape counts in the indictment alleged that from September of 2007 until  March of 2008 Freeman “engaged in sexual activity with Jane Doe I, d.o.b. July 11, 1998, by purposely compelling her to submit by force or threat of force.”  The other 16 rape counts used identical language except that they alleged that during the stated time period Freeman had engaged in compelled sexual activity with “Jane Doe II, d.o.b. October 8, 1999.” The nine counts of disseminating obscene material were identical to each other.

At trial, after the state had presented the testimony of the two sisters and other evidence, the prosecutor amended counts four through nine of the indictment to reflect that Jane Doe I, rather than her younger sister, had been the victim of the criminal conduct alleged in those counts. The defense rested without presenting any evidence or witness testimony. The jury found Freeman guilty on all counts.  He was sentenced to 19 consecutive terms of life imprisonment on the rape counts, followed by consecutive terms of imprisonment on the remaining counts.

Freeman appealed to the 8th District Court of Appeals, asserting among other arguments that  his right to a fair trial had been violated because the language of the indictment was insufficiently precise to allow him to defend himself against the criminal conduct of which he was accused in each count.
Freeman also asserted that the multiple identical counts in his indictment were so vague and undifferentiated that he could have been acquitted on some counts but have no certainty that he wouldn’t later face new charges based on the same alleged conduct. The 8th District rejected Freeman’s challenge to the sufficiency of the indictment and upheld most of his convictions, but held that the evidence presented at trial had not been sufficient to support his convictions for count 12 and counts 14 through 19. The court of appeals remanded the case to the trial court for resentencing on the convictions it had affirmed as valid.

Freeman sought and was granted Supreme Court review of the 8th District’s holding that his indictment was sufficient despite its failure to set forth any distinct facts or circumstances that identified the specific criminal conduct underlying each count.

Attorneys for Freeman acknowledge that in cases where a child’s recollection of alleged past sexual abuse is the primary basis for criminal charges, prior court decisions have held that the state’s charging instrument (indictment or bill of information) need not identify exact dates and times or precise details of the alleged illegal conduct in order to be valid. They point, however, to a 2005 decision, Valentine v. Konteh, in which the  U.S. Sixth Circuit Court of Appeals vacated all but two of a defendant’s convictions based on an indictment charging the defendant with 20 identically-worded counts of rape and 20 identically-worded counts of felonious sexual penetration. They urge the Supreme  Court in this case to follow the Sixth Circuit’s holding in Valentine that such an indictment alleges a “generic pattern of abuse rather than forty separate abusive incidents,” and that “when prosecutors opt to use such carbon-copy indictments, the defendant has neither adequate notice to defend himself nor sufficient protection from double jeopardy.”

Attorneys for the state urge the Court to dismiss Freeman’s appeal as improvidently allowed, on the basis that he failed to challenge the sufficiency of his indictment during his trial, when the alleged defect could have been corrected, and is therefore barred from raising that issue on appeal. If the Court does not dismiss the case, the state urges the Justices to find that the indictment against Freeman met the test set forth by the U.S. Supreme Court in Russell v. United States (1962) that a charging instrument is  sufficient if it 1) sets forth the essential elements of the crime charged in each count, 2) sufficiently informs the defendant of the allegations he must meet at trial, and 3) does so with sufficient clarity so that an acquittal on some or all counts will prevent the defendant from being  prosecuted again for the same conduct.

They assert that the Valentine decision cited by Freeman held that a trial court may provide the necessary differentiation between separate criminal counts either before or during the defendant’s trial, and point to trial testimony by the victims describing specific sex acts of different kinds that took place at different times and places during the time period identified in the indictment as sufficient to meet the requirements of Russell.  They also point out that Freeman had access to all of the state’s evidence and therefore had the opportunity of learning the basis for the counts in the indictment through “open discovery,” and note that the basis of several of the counts was clearly known to Freeman, because they were based on a partial confession he made to police.

Contacts
Katherine Mullin, 216.698.7919, for the state and Cuyahoga County prosecutor's office.

Erika Cunliffe, 216.443.7580, for Charles Freeman.

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Attorney Discipline

Disciplinary Counsel v. Philip Lucas Proctor, Case no. 2011-0295
Licking County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Newark attorney Philip L. Proctor be suspended for six months for violations of state attorney discipline rules arising from unsupported accusations of bias, ex parte communications and other improper conduct by a judge that Proctor included in written documents he filed in the Delaware County Court of Common Pleas and later repeated in pleadings he submitted to the 5th District Court of Appeals.

Proctor entered into stipulations with the Office of Disciplinary Counsel admitting that his conduct violated three provisions of the Code of Professional Responsibility and jointly recommending a fully-stayed license suspension as the appropriate sanction.  A three-member hearing panel agreed that the stipulated violations had been committed, but rejected the parties’ recommended sanction as insufficient and instead recommended that Proctor receive an actual six-month suspension from practice. The full disciplinary board reviewed and adopted the panel’s findings and recommended sanction.

Proctor has filed objections to the board’s conclusions and recommended sanction. He asserts that while the language he used in his court filings to describe the alleged improper actions of the judge may have been inappropriate, he was ethically obliged to report what he believed was judicial misconduct to the “appropriate authority.” Proctor argues that he acted under the belief that describing the suspected judicial misconduct in his filing with the 5th District, which is the superior court that reviews cases from Delaware County, was an appropriate way to make such a report. He urges the Court to impose a fully-stayed suspension, which is the sanction that he and Disciplinary Counsel mutually agreed was appropriate for his conduct. 

Disciplinary Counsel has entered a response to Proctor’s objections.  Counsel asserts than a number of the factual assertions and arguments now advanced by Proctor are contrary to admissions and agreed statements of fact that were included in the stipulations he signed prior to his board hearing.

While the board’s recommended sanction is more severe than the penalty counsel agreed to support, counsel argues that an actual suspension from practice is commensurate with the reckless accusations that Proctor made against a judge, accusations which he later agreed were not supported by first-hand knowledge or credible evidence.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

James Adray, 419.241.2000, for Philip Proctor.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.